Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Public Health etc. (Scotland) Act 2008

Type Act of the Scottish Parliament

Publication 2008-07-16

Last updated 2026-03-02

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

Part 1 — Public health responsibilities

The Scottish Ministers

Disclosure of information

1

(1) The Scottish Ministers are to continue to make provision, or secure that provision is made, for the purpose of protecting public health in Scotland.

(2) In subsection (1), “protecting public health”—

(a) means the protection of the community (or any part of the community) from—

(i) infectious diseases;

(ii) contamination; or

(iii) other such hazards,

which constitute a danger to human health; and

(b) includes—

(i) the prevention of;

(ii) the control of; and

(iii) the provision of a public health response to,

such diseases, contamination or other hazards.

(3) The Scottish Ministers may, for the purpose of protecting public health in Scotland, provide assistance (including financial assistance) to any person who exercises functions in relation to the protection of public health.

(4) Subsection (1) is without prejudice to sections 1 and 1A of the National Health Service (Scotland) Act 1978 (c. 29) (the “1978 Act”) (general duties of Scottish Ministers to provide a health service and to promote the improvement of the health of the people of Scotland).

(5) In this Act—

“contamination” means contamination with or by a biological, chemical or radioactive substance; and cognate expressions are to be construed accordingly;

“infectious disease” means an illness or medical condition caused by an infectious agent (including by an organism listed in Part 2 of schedule 1 but not by a contaminant); and

“protecting public health” has the meaning given by subsection (2); and cognate expressions are to be construed accordingly.

Health boards

Duty of health boards to protect public health

2

(1) Each health board is to continue to make provision, or secure that provision is made, for the purpose of protecting public health in its area.

(2) Subsection (1) is without prejudice to section 2A of the 1978 Act (duty of health boards to promote improvement in the health of the people of Scotland).

(3) Anything done by a health board in the exercise of functions under this Act is to be regarded as done in exercise of functions of the Scottish Ministers conferred on the health board by the order under section 2(1)(a) of the 1978 Act which constituted the board.

Designation of competent persons by health boards

3

(1) Each health board must designate a sufficient number of persons for the purpose of exercising, on behalf of the board, the functions relating to protection of public health mentioned in subsection (3).

(2) A person designated under subsection (1) is a “health board competent person”.

(3) The functions referred to in subsection (1) are—

(a) the functions conferred on a health board competent person by virtue of this Act; and

(b) any functions conferred on such a competent person by virtue of any other enactment.

(4) The Scottish Ministers may prescribe—

(a) the persons or classes of person who may be designated as health board competent persons;

(b) the qualifications which such persons must have;

(d) such other requirements as to competency which such persons must meet as Ministers consider appropriate; and

(e) such other matters relating to the terms and conditions of the designation of persons as competent persons as Ministers consider appropriate.

(5) Regulations under subsection (4) may provide that such functions of health board competent persons as are prescribed may be exercised only by competent persons who—

(a) have such qualifications;

(b) have undertaken such training; or

as the Scottish Ministers consider appropriate in relation to those functions.

Local authorities

Duty of local authorities to protect public health

4

Each local authority is to continue to make provision, or secure that provision is made, for the purpose of protecting public health in its area.

Designation of competent persons by local authorities

5

(1) Each local authority must designate a sufficient number of persons for the purpose of exercising, on behalf of the authority, the functions relating to protection of public health mentioned in subsection (3).

(2) A person designated under subsection (1) is a “local authority competent person”.

(3) The functions referred to in subsection (1) are—

(a) the functions conferred on a local authority competent person by virtue of this Act; and

(b) any functions conferred on such a competent person by virtue of any other enactment.

(4) The Scottish Ministers may prescribe—

(a) the persons or classes of person who may be designated as local authority competent persons;

(b) the qualifications which such persons must have;

(d) such other requirements as to competency which such persons must meet as Ministers consider appropriate; and

(e) such other matters relating to the terms and conditions of the designation of persons as competent persons as Ministers consider appropriate.

(5) Regulations under subsection (4) may provide that such functions of local authority competent persons as are prescribed may be exercised only by competent persons who—

(a) have such qualifications;

(b) have undertaken such training; or

as the Scottish Ministers consider appropriate in relation to those functions.

Co-operation and planning

Duty of health boards and local authorities to co-operate

6

(1) In exercising the functions conferred on them by virtue of this Act, each—

(a) health board; and

(b) local authority,

must co-operate with any relevant person that appears to the board or, as the case may be, authority to have an interest in or a function relating to the protection of public health.

(2) In subsection (1), a “relevant person” is—

(a) a health board;

(b) a special health board;

(ca) an integration joint board established under section 9(2) of the Public Bodies (Joint Working) (Scotland) Act 2014;

(d) the common services agency;

(da) Healthcare Improvement Scotland;

(e) the Scottish Ministers.

(3) Subsection (1) is without prejudice to section 13 of the 1978 Act (duty of health boards and local authorities to co-operate to secure and advance the health of the people of Scotland).

Joint public health protection plans

7

(1) Each health board must prepare such plans relating to the protection of public health in its area as the board considers appropriate.

(2) In preparing a plan under subsection (1), a health board must consult the relevant local authority.

(3) A plan under subsection (1) must—

(a) be prepared in accordance with any guidance issued by the Scottish Ministers; and

(b) include provision about such matters as may be specified in such guidance.

(4) A board may comply with subsection (1) by incorporating the plan in any other plan the board is required or has power to prepare under any other enactment.

(5) A board which prepares a plan under subsection (1) must publish the plan (whether as part of another plan in which it is incorporated or otherwise).

(6) The board—

(a) may from time to time vary a plan under subsection (1); and

(b) must publish the plan as so varied.

(7) The board must, before varying a plan under subsection (6)(a), consult the relevant local authority.

(8) In this section, the “relevant local authority”—

(a) is the local authority for the area in relation to which a board is constituted; or

(b) where the area of the board comprises or includes the areas of two or more local authorities, is both or all of those authorities.

Power of Scottish Ministers to intervene

Power to direct health boards and local authorities

8

(1) This section and section 9 apply where the Scottish Ministers consider that—

(a) a health board or, as the case may be, a local authority has failed, is failing or is likely to fail—

(i) to exercise a function conferred on it by virtue of this Act or by any other enactment relating to the protection of public health; or

(ii) to exercise that function in a manner which Ministers consider acceptable; and

(b) it is necessary for the purpose of protecting public health that the function—

(i) is exercised; or

(ii) is exercised in such a manner as Ministers consider acceptable.

(2) The Scottish Ministers may in writing direct the board or, as the case may be, the authority—

(a) to exercise the function; or

(b) to exercise it in such a manner,

within such period and subject to such other conditions as they consider appropriate.

(3) A direction under subsection (2) must specify—

(a) the function of the board or, as the case may be, of the authority to which it applies;

(b) the period within which the function—

(i) is to be exercised; or

(ii) is to be exercised in the manner specified; and

(4) The Scottish Ministers may from time to time vary or withdraw a direction under subsection (2).

(5) If, in pursuance of an integration scheme prepared under section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 2014, a health board delegates any of its functions relating to the protection of public health, this section and sections 9 and 10 apply in relation to the person to whom the functions are delegated as they apply to the health board.

Power to direct that functions be exercised by other persons

9

(1) The Scottish Ministers may, whether or not they have given a direction under section 8(2), in writing direct that a function of a health board or, as the case may be, of a local authority be exercised instead by a person specified in the direction.

(2) But, where a direction under section 8(2) has been given, they may not give a direction under subsection (1)—

(a) before the expiry of the period specified in the direction under that section; or

(b) where that period has not expired, without withdrawing that direction under section 8(4).

(3) The persons who may be specified in a direction under subsection (1) are one or more of the following—

(a) a health board;

(b) the common services agency;

(d) an employee of—

(i) a health board;

(ii) the agency; or

(iii) a local authority;

(e) a member of staff of the Scottish Administration;

(f) such other person Ministers consider appropriate.

(4) A direction under subsection (1) must specify—

(a) the function of the board or, as the case may be, of the authority to which it applies;

(b) the person by whom the function is to be exercised;

(d) the extent to which that person is to exercise that function; and

(e) any other conditions imposed by the Scottish Ministers as they consider appropriate.

(5) The Scottish Ministers may from time to time vary or withdraw a direction under subsection (1).

Directions under section 9(1): supplementary

10

(1) The giving of a direction under section 9(1) does not affect the responsibility of the health board or, as the case may be, the local authority for the exercise of the function which, by virtue of the direction, is exercised by another person.

(2) Anything done or omitted by a person exercising a function by virtue of the direction is to be regarded as done or omitted by the board or authority.

(3) A person dealing in good faith and for value with a person exercising a function by virtue of the direction need not inquire as to whether that person is acting in accordance with the direction.

(4) Unless the direction specifies otherwise, the board or the authority must pay the person by whom its function is exercised—

(a) the remuneration and expenses of; and

(b) any other costs reasonably incurred by,

that person in exercising that function.

Power to direct allocation of resources

11

The Scottish Ministers may, if they are satisfied that it is necessary to do so, direct—

(a) a health board to make such payments as Ministers consider appropriate to—

(i) another health board; or

(ii) a local authority;

(b) a local authority to make such payments as Ministers consider appropriate to—

(i) another local authority; or

(ii) a health board,

in connection with the performance by the recipient board or authority of its functions relating to the protection of public health.

Part 2 — Notifiable diseases, notifiable organisms and health risk states

Notifiable diseases and organisms

Lists of notifiable diseases and notifiable organisms

12

(1) In this Part—

“notifiable disease” means a disease listed in Part 1 of schedule 1; and

“notifiable organism” means an organism listed in Part 2 of schedule 1.

(2) The Scottish Ministers may by regulations amend a list in schedule 1 by—

(a) adding an item to the list;

(b) removing an item from the list;

(3) Regulations under subsection (2) may add a disease or organism to a list only if the Scottish Ministers are satisfied that the disease or organism is likely to give rise to a significant risk to public health.

(4) The Scottish Ministers must, when considering whether a disease or organism is likely to give rise to such a risk, have regard—

(a) in the case of a disease, to—

(i) the seriousness of the disease; and

(ii) the ease of transmissibility through casual contact of the disease;

(b) in the case of an organism, to the seriousness and ease of transmissibility through casual contact of the disease which the organism would cause.

Duties to notify

Notifiable diseases: duties on registered medical practitioners

13

(1) This section applies where a registered medical practitioner has reasonable grounds to suspect that a patient whom the practitioner is attending has a notifiable disease.

(2) The practitioner must, before the expiry of the period of 3 days beginning with the day on which the practitioner forms that suspicion, provide to the relevant health board, in writing, the information mentioned in subsection (6) in so far as it is known to the practitioner.

(3) Without prejudice to subsection (2), if the practitioner considers that the case is urgent, the practitioner must, as soon as reasonably practicable, orally provide to the relevant health board—

(a) the information mentioned in subsection (6) in so far as it is known to the practitioner; and

(b) an explanation of why the practitioner considers the case is urgent.

(4) In determining whether a case is urgent, the practitioner must have regard to—

(a) the nature of the suspected disease;

(b) the ease of transmission of that disease;

(d) any guidance issued by the Scottish Ministers.

(5) Subsections (2) and (3) do not apply if the practitioner believes on reasonable grounds that another registered medical practitioner—

(a) has complied with those subsections in respect of the patient; or

(b) has provided information in respect of the disease to the relevant health board under section 14(2) or (3).

(6) The information referred to in subsections (2) and (3)(a) is—

(a) the patient's name;

(b) the patient's address and postcode;

(d) the name, address and postcode of the patient's place of work or education (if the practitioner considers that it is relevant);

(e) the patient's sex;

(f) the patient's date of birth;

(g) the suspected disease; and

(h) the patient's NHS identifier.

(7) In this section and section 14, the “relevant health board” is the health board for the area in which the practitioner works.

(8) In this Part, “NHS identifier” means—

(a) the patient's—

(i) community health index number; or

(ii) where that number is not known, NHS identification number; or

(b) where neither of the numbers referred to in paragraph (a) is known, any other number or other indicator which from time to time may be used to identify a patient individually.

Health risk states: duties on registered medical practitioners

14

(1) This section applies where a registered medical practitioner has reasonable grounds to suspect that a patient whom the practitioner is attending has been exposed to a health risk state.

(2) The practitioner must, before the expiry of the period of 3 days beginning with the day on which the practitioner forms that suspicion, provide to the relevant health board, in writing, the information mentioned in subsection (6) in so far as it is known to the practitioner.

(3) Without prejudice to subsection (2), if the practitioner considers that the case is urgent, the practitioner must, as soon as reasonably practicable, orally provide to the relevant health board—

(a) the information mentioned in subsection (6) in so far as it is known to the practitioner; and

(b) an explanation of why the practitioner considers the case is urgent.

(4) In determining whether a case is urgent, the practitioner must have regard to—

(a) the nature of the suspected health risk state;

(b) the nature of the exposure to that state;

(d) any guidance issued by the Scottish Ministers.

(5) Subsections (2) and (3) do not apply if the practitioner believes on reasonable grounds that another registered medical practitioner—

(a) has complied with those subsections in respect of the patient; or

(b) has provided information in respect of the health risk state to the relevant health board under section 13(2) or (3).

(6) The information referred to in subsections (2) and (3)(a) is—

(a) the patient's name;

(b) the patient's address and postcode;

(d) the name, address and postcode of the patient's place of work or education (if the practitioner considers that it is relevant);

(e) the patient's sex;

(f) the patient's date of birth;

(g) the suspected health risk state; and

(h) the patient's NHS identifier.

(7) In this section and section 15, “health risk state” means—

(a) a highly pathogenic infection; or

(b) any—

(i) contamination;

(ii) poison; or

(iii) other hazard,

which is a significant risk to public health.

(8) In this section, references to a patient having been “exposed to a health risk state” are references to the patient—

(a) having been in physical contact with a health risk state;

(b) having been contaminated by a health risk state; or

(i) a person who; or

(ii) an object which,

has been in physical contact with or contaminated by a health risk state.

Notifiable diseases and health risk states: duties on health boards

15

(1) Where—

(a) a health board receives information under—

(i) section 13(2) or (3); or

(ii) section 14(2) or (3); and

(b) that information relates to a patient who usually resides within the area of that health board,

that board must send a return, in writing, to the common services agency and Public Health Scotland containing, in relation to each patient, the information mentioned in subsection (3) in so far as it is known to the board.

(2) The return under subsection (1) is to be sent—

(a) no later than the end of the week in which the information mentioned in subsection (1)(a) is received; or

(b) if it is not practicable to send the return by the end of that week, as soon as practicable afterwards.

(3) The information referred to in subsection (1) is—

(a) the patient's postcode;

(b) the patient's occupation;

(d) the patient's date of birth;

(e) the—

(i) suspected disease; or

(ii) suspected health risk state; and

(f) the patient's NHS identifier.

(4) Where—

(a) a health board receives information as mentioned in subsection (1)(a); and

(b) that information relates to a person who does not usually reside in the area of that health board,

the board must without delay transmit the information to the health board for the area in which the person usually resides.

(5) Where a health board receives information from another health board by virtue of subsection (4)—

(a) the board must send a return, in writing, to the common services agency and Public Health Scotland containing, in relation to each patient, the information mentioned in subsection (3) in so far as it is known to the board; and

(b) subsection (2) applies to a return sent under this subsection as it applies to a return sent under subsection (1) with the modification that, for the reference to subsection (1)(a), there is substituted a reference to subsection (4).

(6) In subsection (2), “week” means a period of 7 days ending on Friday at the expiry of the normal working hours of the board's principal office.

Notifiable organisms: duties on directors of diagnostic laboratories

16

(1) This section applies where a diagnostic laboratory identifies a notifiable organism.

(2) The director of the laboratory must, before the expiry of the period of 10 days beginning with the day of identification, provide to the persons mentioned in subsection (5), in writing, the information mentioned in subsection (6) in so far as it is known to the director.

(3) Without prejudice to subsection (2), if the director considers that the case is urgent, the director must, as soon as reasonably practicable, orally provide to the persons mentioned in subsection (5)—

(a) the information mentioned in subsection (6) in so far as it is known to the director; and

(b) an explanation of why the director considers the case is urgent.

(4) In determining whether a case is urgent, the director must have regard to—

(a) the nature of the organism;

(b) the nature of the disease which that organism causes;

(d) where known, the patient's circumstances (including age, sex and health); and

(e) any guidance issued by the Scottish Ministers.

(5) The persons referred to in subsections (2) and (3) are—

(a) the health board in whose area the diagnostic laboratory is situated; ...

(b) the common services agency; and

(6) The information referred to in subsections (2) and (3)(a) is—

(a) the name of the person to whom the identification relates;

(b) the person's address;

(d) the person's date of birth;

(e) the organism which has been identified; and

(f) the person's NHS identifier.

(7) Where—

(a) a health board receives information under subsection (2) or (3); and

(b) that information relates to a person who does not usually reside in the area of that board,

the board must without delay transmit that information to the health board for the area in which the person usually resides.

(8) For the purposes of subsection (1), a diagnostic laboratory identifies a notifiable organism where—

(a) the diagnostic laboratory identifies the organism; or

(b) the organism is identified by another laboratory under an arrangement with that diagnostic laboratory.

(9) Where subsection (8)(b) applies, the day of identification, for the purposes of subsection (2), is the day on which the diagnostic laboratory becomes aware of the identification by the other laboratory.

(10) In this section and section 17—

“diagnostic laboratory” means an institution (or facility within an institution) which is equipped with apparatus and reagents for the performance of diagnostic tests for human infections; and

“director” of a diagnostic laboratory means—the clinical microbiologist, consultant pathologist or other registered medical practitioner or other person in charge of a diagnostic laboratory; orany other person working in the diagnostic laboratory to whom the function of making a notification under this section has been delegated by the person mentioned in paragraph (a).

Offences

Notifiable organisms: offences

17

(1) It is an offence for the director of a diagnostic laboratory to fail without reasonable excuse to comply with section 16(2).

(2) In proceedings for an offence under subsection (1), it is a defence for the director to prove that the director exercised all due diligence and took all reasonable steps to avoid committing the offence.

(3) Where—

(a) the director of a diagnostic laboratory commits the offence mentioned in subsection (1); and

(b) the director is employed by a body corporate,

the body corporate also commits an offence.

(4) In proceedings for an offence under subsection (3), it is a defence for the body corporate to prove that the body corporate (or an employee or agent of the body corporate) exercised all due diligence and took all reasonable steps to avoid committing the offence.

(5) In subsection (3)(b), “employed” includes engaged under a contract for services.

Supplementary provision

Electronic notification

18

(1) The requirement in sections 13(2), 14(2), 15(1) and (5) and 16(2) for information to be provided in writing may be satisfied by a document in electronic form—

(a) transmitted by electronic means; and

(b) capable of being reproduced in legible form.

(2) For the purposes of sections 13(2), 14(2), 15(1) and (5) and 16(2), a document transmitted in accordance with subsection (1) is to be taken to be received on the day of transmission.

Notifiable diseases etc.: further provision

19

(1) The Scottish Ministers may, by regulations, make provision (or such further provision) as they consider appropriate—

(a) as to the way in which information is to be provided under section 13, 14, 15 or 16, including—

(i) the person by whom it is to be provided;

(ii) the person to whom it is to be provided;

(iii) the nature of the information that is required to be provided;

(iv) the form and manner in which it is to be provided;

(v) the time by which it is to be provided;

(b) as to the manner in which the authenticity or integrity of any communication or data contained in an electronic communication made by virtue of section 18 may be established.

(2) Regulations under subsection (1) may modify any enactment (including this Act).

Part 3 — Public health investigations

Public health investigations

Public health incidents

20

(1) A public health incident exists if—

(a) a circumstance mentioned in subsection (2), (3), (4), (5) or (6) occurs; and

(b) there are reasonable grounds to suspect that the circumstance is likely to give rise to a significant risk to public health.

(2) The first circumstance is that—

(a) a person has an infectious disease; or

(b) there are reasonable grounds to suspect that a person has such a disease.

(3) The second circumstance is that—

(a) a person has been exposed to an organism which causes infectious disease; or

(b) there are reasonable grounds to suspect that a person has been so exposed.

(4) The third circumstance is that—

(a) a person is contaminated; or

(b) there are reasonable grounds to suspect that a person is contaminated.

(5) The fourth circumstance is that—

(a) a person has been exposed to a contaminant; or

(b) there are reasonable grounds to suspect that a person has been so exposed.

(6) The fifth circumstance is that—

(a) any premises are or any thing in or on premises is infected, infested or contaminated; or

(b) there are reasonable grounds to suspect that any premises are or thing is so infected, infested or contaminated.

(7) In subsection (6), “infected”, “infested” and “contaminated” have the meanings given by section 72(5).

Public health investigations

21

(1) In this Part, a “public health investigation” means an investigation into the cause (or causes) of a public health incident.

(2) A public health investigation may be carried out by a person appointed for the purpose by—

(a) the Scottish Ministers;

(b) a health board competent person;

(ca) Public Health Scotland;

(d) a local authority competent person;

(e) two or more of the persons mentioned in paragraphs (a) to (d) acting together,

and, in this Part, that person is known as an “investigator”.

(3) Despite subsection (2)(b) and (d), a health board competent person or a local authority competent person may be appointed as an investigator.

(4) If an investigator considers it necessary for the purpose of, or in connection with, a public health investigation, the investigator may, subject to section 25(1), exercise—

(a) the powers relating to entry to premises mentioned in section 22;

(b) the other investigatory powers mentioned in section 23; and

Investigators' powers

Powers relating to entry to premises

22

(1) The powers referred to in section 21(4)(a) are—

(a) subject to section 26, to enter at any reasonable time any premises which the investigator has reason to believe it is necessary to enter;

(b) on entering any premises by virtue of paragraph (a), to take—

(i) any other person authorised by the investigator and, if the investigator has reasonable cause to expect any serious obstruction in obtaining access, a constable; and

(ii) any equipment or materials required for any purpose for which the power of entry is being exercised;

(i) those premises (or any part of them) are; or

(ii) any thing in or on them is,

to be left undisturbed (whether generally or in particular respects) for so long as the investigator considers appropriate.

(2) An investigator who enters any unoccupied premises in the exercise of a power conferred by virtue of subsection (1)(a) must leave the premises as effectively secured against unauthorised entry as the investigator found them.

Other investigatory powers

23

(1) The powers referred to in section 21(4)(b) are—

(a) to take such measurements and photographs and make such recordings as the investigator considers necessary for the purpose of the public health investigation;

(b) to obtain and to take samples (or cause samples to be taken) of—

(i) any articles or substances found in or on any premises which the investigator has power under section 22 to enter; and

(ii) the air, water or land in, on, or in the vicinity of, the premises;

(c) in the case of any article or substance found in or on any premises which the investigator has power to enter, being an article or substance which appears to the investigator to be the cause of the public health incident, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it, unless that is necessary);

(d) in the case of any article or substance referred to in paragraph (c), to take possession of it and detain it for so long as is necessary for all or any of the following purposes—

(i) to examine it (or cause it to be examined) and to do (or cause to be done) to it anything which the investigator has power to do under that paragraph;

(ii) to ensure that it is not tampered with before examination of it is completed;

(iii) to ensure that it is available for use as evidence in any proceedings for an offence under any enactment or rule of law;

(e) to—

(i) require the production of (or, where the information is recorded electronically, the furnishing of extracts from) any records which it is necessary for the investigator to see for the purposes of the investigation; and

(ii) inspect and take copies of, or of any entry in, the records;

(f) to make such examination and investigation as may in the circumstances be necessary.

(2) Where an investigator proposes to exercise the power conferred by subsection (1)(c), the investigator must, if so requested by a person who at the time is present on the premises and has responsibilities in relation to those premises, cause anything which is done by virtue of that power to be done in the presence of that person.

(3) Before exercising the power conferred by subsection (1)(c), an investigator must consult—

(a) such persons having duties on the premises where the article or substance is to be dismantled or subjected to the process or test; and

(b) such other persons,

as appear to the investigator to be appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which the investigator proposes to do (or cause to be done) under the power.

(4) The information which a person may be required to provide under subsection (1)(e) includes information which, although it is not in the possession of that person or would not otherwise come into the possession of that person, is information which it is reasonable to require that person to obtain for the purposes of complying with the requirement.

(5) Nothing in this section compels the production by any person of a document subject to legal privilege.

(6) A document subject to legal privilege means a communication—

(a) between a professional legal adviser and the adviser's client; or

(b) made in connection with or in contemplation of legal proceedings and for the purpose of those proceedings,

which would, in legal proceedings, be protected from disclosure by virtue of any rule of law relating to confidentiality of communications.

Power to ask questions

24

(1) The power referred to in section 21(4)(c) is to require any person whom the investigator has reasonable cause to believe has any information relevant to the public health investigation to answer such questions as the investigator considers it appropriate to ask.

(2) A person required to answer questions under subsection (1) may nominate one other person to be present during questioning.

(3) When a person answers questions under subsection (1), the only other persons who may be present (apart from the investigator) are—

(a) the person (if any) nominated under subsection (2); and

(b) any person authorised by the investigator to be present.

(4) No answer given by a person in pursuance of a requirement imposed under subsection (1) is admissible in evidence against the person in any criminal proceedings.

Supplementary

25

(1) An investigator entitled to exercise a power under section 22, 23 or 24 must, if requested to do so, produce a document showing that investigator's authority.

(2) An investigator may require any person to provide the investigator with such facilities and assistance with respect to any matters or things—

(a) within that person's control; or

(b) in relation to which that person has responsibilities,

as are necessary to enable the investigator to exercise any of the powers conferred by sections 22, 23 and 24.

(3) The Scottish Ministers may, by regulations, confer on investigators such powers as Ministers consider necessary for the purposes of public health investigations.

(4) Regulations under subsection (3) may modify any enactment (including this Act).

(5) This section and sections 22 to 24 are without prejudice to any other powers conferred on an investigator by—

(a) this Act or any other enactment; or

(b) any rule of law.

Entry to dwellinghouses

26

(1) Where an investigator proposes, in the exercise of a power conferred by section 22, to enter a dwellinghouse, the conditions set out in subsections (2) and (3) must be satisfied.

(2) The first condition is that the investigator has given 48 hours' notice of the proposed entry to a person who appears to be the occupier of the dwellinghouse.

(3) The second condition is that—

(a) the person who appears to be the occupier of the dwellinghouse has consented; or

(b) entry is effected under the authority of a warrant issued in accordance with section 27.

(4) In this Part, “dwellinghouse” means any premises or part of premises which are wholly or mainly occupied as a person's dwelling.

Public health investigation warrants

27

(1) This section applies where—

(a) an investigator entitled to enter premises under section 22—

(i) has been refused entry; or

(ii) reasonably anticipates entry being refused;

(b) premises which an investigator is entitled to enter are unoccupied;

(d) an investigator entitled to exercise a power under section 23 or 24—

(i) has been prevented from exercising that power; or

(ii) reasonably anticipates being prevented from doing so; or

(e) an application for admission to the premises would defeat the object of the public health investigation.

(2) The sheriff or a justice of the peace may, on the application of the investigator, by warrant authorise the investigator—

(a) to enter the premises;

(b) on entering premises by virtue of paragraph (a), to take—

(i) any other person authorised by the investigator and, if the investigator has reasonable cause to expect any serious obstruction in obtaining access, a constable; and

(ii) any equipment or materials required for any purpose for which the power of entry is being exercised;

(i) those premises (or any part of them) are; or

(ii) any thing in or on them is,

to be left undisturbed (whether generally or in particular respects) for so long as the investigator considers appropriate;

(d) to exercise any power mentioned in sections 23 to 25.

(3) The sheriff or justice of the peace must not, under subsection (2), grant a warrant in relation to a dwellinghouse unless the sheriff or justice is satisfied that—

(a) the notice required by section 26(2) has been given; and

(b) the period of notice has expired.

(4) The power of entry in this section—

(a) may be exercised at any time; and

(b) includes power to use reasonable force.

(5) Where the investigator enters premises by virtue of this section, section 22(2) applies.

(6) A warrant under this section continues in force until the purpose for which it is issued is fulfilled.

Use of powers in emergencies

28

(1) This section applies where an investigator who is entitled to enter premises by virtue of the power conferred by section 22 considers, on reasonable grounds, that there is an emergency.

(2) The power of entry which the investigator has—

(a) may be exercised at any time; and

(b) includes power to use reasonable force.

(3) Where the premises in relation to which the investigator proposes to exercise the power are a dwellinghouse, section 26 does not apply.

(4) The investigator may, on entering premises by virtue of this section—

(a) take—

(i) any other person authorised by the investigator and, if the investigator has reasonable cause to expect any serious obstruction in obtaining access, a constable; and

(ii) any equipment or materials required for any purpose for which the power of entry is being exercised;

(b) direct that—

(i) those premises (or any part of them) are; or

(ii) any thing in or on them is,

to be left undisturbed (whether generally or in particular respects) for so long as the investigator considers appropriate;

(5) Where the investigator enters premises by virtue of this section, section 22(2) applies.

(6) In this section, there is an “emergency” if—

(a) there is a significant risk to public health; and

(b) the nature of that risk is such that immediate action is necessary—

(i) to verify the existence of the risk;

(ii) to ascertain the cause of the risk; or

(iii) to take action to prevent, or prevent the spread of, infectious disease or contamination.

Offences

Public health investigation offences

29

(1) A person commits an offence if the person, without reasonable excuse—

(a) fails to comply with a requirement imposed under section 22, 23, 24 or 25;

(b) intentionally obstructs an investigator in the exercise of powers under those sections;

(i) provide facilities or assistance;

(ii) provide information; or

(iii) permit inspection,

where it is reasonably required by an investigator exercising powers under those sections;

(d) prevents any other person from—

(i) appearing before an investigator; or

(ii) answering a question to which an investigator may require an answer pursuant to section 24(1);

(e) in purported compliance with a requirement imposed under section 24(1)—

(i) makes a statement which the person knows to be false or misleading in a material particular;

(ii) recklessly makes a statement which is false or misleading in a material particular; or

(iii) intentionally fails to disclose any material particular;

(f) causes or permits another person to commit an offence under paragraphs (a) to (e).

(2) In proceedings for an offence under subsection (1), it is a defence for a person to prove that the person exercised all due diligence and took all reasonable steps to avoid committing the offence.

(3) Where the commission by a person of an offence under subsection (1) is due to the act or omission of another person, that other person may be charged with and convicted of the offence whether or not proceedings for the offence are taken against the first person.

Compensation

Public health investigations: compensation

30

(1) Where subsection (2) or (3) applies, compensation is payable for loss or damage caused by—

(a) the investigator; or

(b) a person authorised by the investigator under section 22(1)(b)(i), 27(2)(b)(i) or 28(4)(a)(i).

(2) This subsection applies where a person has suffered loss or damage by reason of—

(a) the exercise by an investigator of the powers in section 22(1)(a) or (b); or

(b) the failure by an investigator to comply with the duty in section 22(2),

unless the loss or damage is attributable to the fault of the person who sustained it.

(3) This subsection applies in the case of damage to or destruction of an article or substance in exercise of powers under section 23(1)(c) where the article or substance is found not to be the cause of the public health incident.

(4) The person responsible for paying compensation under this section is—

(a) in the case of an investigator, the person by whom the investigator is employed;

(b) in the case of a person authorised by the investigator under section 22(1)(b)(i), 27(2)(b)(i) or 28(4)(a)(i), the person by whom the authorised person is employed.

(5) For the purposes of subsection (4), “employed” includes engaged under a contract for services.

(6) Any dispute as to—

(a) a person's entitlement to compensation under subsection (1); or

(b) the amount of such compensation,

is to be determined by a single arbiter appointed by agreement between the parties to the dispute or, if such agreement cannot be reached, by the sheriff.

Part 4 — Public health functions of health boards

Duty to give explanation

Duty of health boards to give explanation of need for action

31

(1) This section applies where—

(a) a health board proposes to take any action mentioned in section 32(a) to (c); or

(b) a health board competent person proposes to take any action mentioned in section 32(d) or (e).

(2) An action referred to in subsection (1) is, in this section, a “relevant action”.

(3) The appropriate health board must, in so far as it is reasonably practicable to do so, explain to the person in relation to whom the relevant action is proposed—

(a) that there is a significant risk to public health;

(b) the nature of that risk; and

(4) Where, before the proposed relevant action is taken, no explanation is given under subsection (3), the health board must, as soon as reasonably practicable after taking the proposed action and in so far as it is reasonably practicable to do so, explain—

(a) the matters mentioned in subsection (3)(a) and (b); and

(b) why the board considered it necessary to take the action,

to the person in relation to whom the action was taken.

(5) Where the person is incapable of understanding the explanation (whether because of youth, illness or otherwise), the board must, before taking the proposed action or as soon as reasonably practicable after doing so and, in either case, in so far as it is reasonably practicable to do so, give the explanation required by subsection (3) or, as the case may be, (4)—

(a) where the person is under 16, to any person having parental responsibilities and parental rights in relation to the person;

(b) in any other case, to—

(i) any guardian of the person;

(ii) any welfare attorney of the person; or

(iii) any other person appointed or having authority to intervene in the affairs of the person.

(6) In this section—

“appropriate health board” means—in the case of a relevant action referred to in subsection (1)(a), the health board which proposes to take that action;in the case of a relevant action referred to in subsection (1)(b), the health board which designated the competent person who proposes to take that action;

“guardian”—means a guardian who has powers relating to the proposed intervention in the person's affairs; andincludes a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, a person during that person's incapacity, if the guardianship is recognised in Scotland;

“parental responsibilities and parental rights” has the same meaning as in the Children (Scotland) Act 1995 (c. 36); and

“welfare attorney” has the meaning given by section 16(2) of the Adults with Incapacity (Scotland) Act 2000 (asp 4).

Relevant actions

32

The actions referred to in section 31(1) are—

(a) applying under section 33(2) for an order under section 34(1);

(b) applying under section 39(2) for an order under section 40(1);

(i) section 42(1);

(ii) section 43(1); or

(iii) section 45(1);

(d) making an order under section 37(2);

(e) making an order under section 38(2).

Medical examinations

Application to have person medically examined

33

(1) This section applies where—

(a) a health board knows or suspects that a person who is present in that board's area—

(i) has an infectious disease;

(ii) has been exposed to an organism which causes such a disease;

(iii) is contaminated; or

(iv) has been exposed to a contaminant; and

(b) it appears to the board that as a result—

(i) there is or may be a significant risk to public health; and

(ii) it is necessary, to avoid or minimise that risk, for the person to be medically examined.

(2) The board may apply to any sheriff for the board's area for an order under section 34(1) in relation to the person.

(3) An application under subsection (2) must—

(a) specify—

(i) the person in relation to whom the order is sought;

(ii) the reason why the board considers it necessary for the person to be medically examined;

(iii) the class or classes of health care professional by whom it is proposed that the examination is to be carried out;

(iv) the nature of the examination the board proposes be carried out;

(v) whether an explanation has been given under section 31(3) or (5);

(vi) where such an explanation has been given, any response made by or representations made on behalf of the person in relation to whom the order is sought;

(vii) where no such explanation has been given, the reason why; and

(b) include a certificate—

(i) stating that a health board competent person is satisfied as to the matters mentioned in subsection (1); and

(ii) signed by the competent person.

(4) In this Part, “health care professional” means—

(a) a registered medical practitioner;

(b) a registered nurse; or

(c) any other member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17).

Order for medical examination

34

(1) The sheriff may, if satisfied as to the matters mentioned in subsection (2), make an order authorising the medical examination of the person to whom the application under section 33(2) relates.

(2) The matters referred to in subsection (1) are—

(a) that it is known, or there are reasonable grounds to suspect, that the person—

(i) has an infectious disease;

(ii) has been exposed to an organism which causes such a disease;

(iii) is contaminated; or

(iv) has been exposed to a contaminant;

(b) that as a result—

(i) there is or may be a significant risk to public health; and

(ii) it is necessary, to avoid or minimise that risk, for the person to be medically examined; and

(i) before the application under section 33(2) was made, the health board gave an explanation under section 31(3) or (5); or

(ii) where no such explanation was given, it was not reasonably practicable to do so.

(3) An order under subsection (1) may make provision about such other matters in connection with the examination as the sheriff considers appropriate.

(4) Subject to subsection (5), an order under subsection (1) has effect from the time at which it is made until—

(a) the expiry of the period of 7 days beginning with that time; or

(b) the carrying out of a medical examination authorised by the order,

whichever occurs first.

(5) Where, before the medical examination is carried out, an appeal under section 60(1) is made—

(a) the order appealed against is suspended; and

(b) in calculating the period of 7 days mentioned in subsection (4)(a), no account is to be taken of the period during which the order is suspended.

(6) An order under subsection (1) must—

(a) specify—

(i) the person to whom it applies; and

(ii) the class or classes of health care professional by whom the medical examination is to be carried out; and

(b) be notified to—

(i) the person to whom it applies;

(ii) any person to whom an explanation was given under section 31(5); and

(iii) any other person the sheriff considers appropriate.

Medical examination: least invasive and least intrusive procedures

35

(1) A health care professional authorised by virtue of an order under section 34(1) to medically examine a person—

(a) must not use invasive or intrusive procedures unless that professional considers such procedures are necessary to achieve the purpose for which the examination is being carried out; and

(b) must, where the professional considers such procedures are necessary for that purpose, use the least invasive and least intrusive procedures practicable.

(2) In this section, “invasive procedures” do not include—

(a) examination of the ear, nose or mouth;

(b) temperature assessment using—

(i) an ear, oral or cutaneous thermometer; or

(ii) thermal imaging;

(d) auscultation;

(e) external palpation;

(f) retinoscopy;

(g) external collection of urine, faeces or saliva samples;

(h) external measurement of blood pressure;

(i) electrocardiography.

Medical examination of groups

36

(1) Where—

(a) a person in relation to whom a health board is satisfied as to the matters mentioned in section 33(1) is one of a group of two or more persons; and

(b) the board is satisfied that it is necessary, to avoid or minimise a significant risk to public health, for each member of the group to be medically examined,

the board may apply under section 33(2) for an order in relation to all of the persons in that group.

(2) Where subsection (1) applies—

(a) sections 31(3) to (5) and 33(3) apply in relation to the persons in the group as they apply in relation to a person;

(b) the certificate mentioned in section 33(3)(b) must state, in addition to the matters mentioned in section 33(3)(b)(i), that the competent person is satisfied that it is necessary, to avoid or minimise an actual or anticipated significant risk to public health, for all the persons in the group to be medically examined;

(i) as to the matters mentioned in section 34(2)(a) and (b) in relation to at least one member of the group; and

(ii) as to the matter mentioned in section 34(2)(c) in relation to each member of the group,

make an order under section 34(1) in relation to each member of the group; and

(d) section 34(6) applies in relation to the persons in the group as it applies to a person.

Exclusion orders and restriction orders

Exclusion orders

37

(1) This section applies where—

(a) a health board knows that a person who is present in that board's area—

(i) has an infectious disease;

(ii) has been exposed to an organism which causes such a disease;

(iii) is contaminated; or

(iv) has been exposed to a contaminant; and

(b) it appears to the board that as a result—

(i) there is a significant risk to public health; and

(ii) it is necessary, to avoid or minimise that risk, for the person to be excluded from certain places.

(2) A health board competent person may make an order (an “exclusion order”)—

(a) prohibiting the person from entering or remaining in any place; and

(b) imposing such conditions (if any) on the person as the competent person considers appropriate.

(3) A competent person—

(a) may not make an exclusion order unless that person is satisfied as to the matters mentioned in subsection (1);

(b) must, when making such an order, have regard to the desirability of imposing the least restrictive order necessary to protect public health.

(4) The exclusion order must—

(a) specify—

(i) the person to whom it applies;

(ii) subject to subsection (5), the place, or type of place, from which the person is excluded; and

(iii) any conditions imposed on the person;

(b) be served on the person to whom it applies; and

(i) any person who was given an explanation under section 31(5); and

(ii) any other person the competent person considers appropriate.

(5) An exclusion order may not specify, as a place from which a person is excluded, that person's place of residence.

(6) An exclusion order has effect only from the time it is served on the person to whom it applies.

Restriction orders

38

(1) This section applies where—

(a) a health board knows that a person who is present in that board's area—

(i) has an infectious disease;

(ii) has been exposed to an organism which causes such a disease;

(iii) is contaminated; or

(iv) has been exposed to a contaminant; and

(b) it appears to the board that as a result—

(i) there is a significant risk to public health; and

(ii) it is necessary, to avoid or minimise that risk, for the person to be restricted from carrying on certain activities.

(2) A health board competent person may make an order (a “restriction order”)—

(a) prohibiting the person from carrying on any activity; and

(b) imposing such conditions (if any) on the person as the competent person considers appropriate.

(3) A competent person—

(a) may not make a restriction order unless that person is satisfied as to the matters mentioned in subsection (1);

(b) must, when making a restriction order, have regard to the desirability of imposing the least restrictive order necessary to protect public health.

(4) The restriction order must—

(a) specify—

(i) the person to whom it applies;

(ii) the activity, or type of activity, which the person is prohibited from carrying on; and

(iii) any conditions imposed on the person;

(b) be served on the person to whom it applies; and

(i) any person who was given an explanation under section 31(5); and

(ii) any other person the competent person considers appropriate.

(5) A restriction order has effect only from the time it is served on the person to whom it applies.

Quarantine

Application to have person quarantined

39

(1) This section applies where—

(a) a health board knows or suspects that a person who is present in that board's area—

(i) has an infectious disease;

(ii) has been exposed to an organism which causes such a disease;

(iii) is contaminated; or

(iv) has been exposed to a contaminant; and

(b) it appears to the board that as a result—

(i) there is or may be a significant risk to public health; and

(ii) it is necessary, to avoid or minimise that risk, for the person to be quarantined.

(2) The board may apply to any sheriff for the board's area for an order under section 40(1) (a “quarantine order”).

(3) An application under subsection (2) must—

(a) specify—

(i) the person in relation to whom the quarantine order is sought;

(ii) why the board considers it necessary for the person to be quarantined;

(iii) the place in which it is proposed to quarantine the person;

(iv) the period for which it is proposed to quarantine the person;

(v) the steps (if any) mentioned in section 46(2) which the board considers it necessary to take in relation to the person;

(vi) the conditions (if any) which the board considers it is necessary to include in the order;

(vii) whether an explanation has been given under section 31(3) or (5);

(viii) where such an explanation has been given, any response made by or representations made on behalf of the person in relation to whom the order is sought;

(ix) where no such explanation has been given, the reason why; and

(b) include a certificate—

(i) stating that a health board competent person is satisfied as to the matters mentioned in subsection (1); and

(ii) signed by that person.

(4) In this Part, references to a person being “quarantined” are references to the person being detained in that person's residence or in another place (not being a hospital); and cognate expressions are to be construed accordingly.

Quarantine orders

40

(1) The sheriff may, if satisfied as to the matters mentioned in subsection (2), make a quarantine order—

(a) authorising—

(i) the quarantining of the person;

(ii) where the person is not in the place in which that person is to be quarantined, the removal of the person to that place; and

(iii) the taking in relation to the person of such of the steps mentioned in section 46(2) (if any) as the sheriff considers appropriate; and

(b) imposing such conditions (if any) in relation to the quarantine as the sheriff considers appropriate.

(2) The matters referred to in subsection (1) are—

(a) that it is known, or there are reasonable grounds to suspect, that the person—

(i) has an infectious disease;

(ii) has been exposed to an organism which causes such a disease;

(iii) is contaminated; or

(iv) has been exposed to a contaminant;

(b) that as a result—

(i) there is or may be a significant risk to public health; and

(ii) it is necessary, to avoid or minimise that risk, for the person to be quarantined; and

(i) before the application under section 39(2) was made, the health board gave an explanation under section 31(3) or (5); or

(ii) where no such explanation was given, it was not reasonably practicable to do so.

(3) A quarantine order has effect—

(a) from the time at which it is made;

(b) for such period, not exceeding 3 weeks beginning with the day on which the order is made, as the sheriff considers appropriate.

(4) A person may be removed to a place in which the person is to be quarantined by—

(a) a constable;

(b) an officer of the health board;

(d) any other person the sheriff considers appropriate.

(5) Conditions imposed by a quarantine order may include—

(a) conditions relating to—

(i) the persons who may have access to the place in which a person is quarantined; and

(ii) the purposes for which such persons may have access;

(b) conditions relating to—

(i) the persons who may have access to the quarantined person; and

(ii) the purposes for which such persons may have access;

(6) A quarantine order must—

(a) specify—

(i) the person to whom the order applies;

(ii) the place in which the person is to be quarantined;

(iii) the period for which the person is to be quarantined;

(iv) the steps mentioned in section 46(2) (if any) which may be taken in relation to the quarantined person; and

(v) any conditions imposed; and

(b) be notified to—

(i) the person to whom it applies;

(ii) any person to whom an explanation was given under section 31(5); and

(iii) any other person the sheriff considers appropriate.

Removal to and detention in hospital

Application to have person detained in hospital

41

(1) This section applies where—

(a) a health board knows that a person who is present in that board's area—

(i) has an infectious disease; or

(ii) is contaminated; and

(b) it appears to the board that as a result—

(i) there is a significant risk to public health; and

(ii) it is necessary, to avoid or minimise that risk, for the person to be detained in hospital.

(2) The board may apply to any sheriff for the board's area—

(a) where the person is not in hospital, for an order under section 42(1);

(b) where the person is in hospital, for an order under section 43(1).

(3) An order referred to in subsection (2) is a “short term detention order”.

(4) An application under subsection (2) must—

(a) specify—

(i) the person in relation to whom the order is sought;

(ii) why the board considers it necessary for the person to be detained in hospital;

(iii) the hospital in which it is proposed to detain the person;

(iv) the period for which it is proposed to detain the person;

(v) the steps (if any) mentioned in section 46(2) which the board considers it necessary to take in relation to the person;

(vi) whether an explanation has been given under section 31(3) or (5);

(vii) where such an explanation has been given, any response made by or representations made on behalf of the person in relation to whom the order is sought;

(viii) where no such explanation has been given, the reason why; and

(b) include a certificate—

(i) stating that a health board competent person is satisfied as to the matters mentioned in subsection (1); and

(ii) signed by that person.

Order for removal to and detention in hospital

42

(1) The sheriff may, if satisfied as to the matters mentioned in subsection (2), make an order authorising—

(a) the removal of a person to hospital by—

(i) a constable;

(ii) an officer of the health board;

(iii) an officer of a local authority; or

(iv) any other person the sheriff considers appropriate;

(b) the detention of the person in hospital; and

(c) the taking in relation to the person of such of the steps mentioned in section 46(2) (if any) as the sheriff considers appropriate.

(2) The matters referred to in subsection (1) are—

(a) that the person—

(i) has an infectious disease; or

(ii) is contaminated;

(b) that as a result—

(i) there is a significant risk to public health; and

(ii) it is necessary, to avoid or minimise that risk, for the person to be admitted to and detained in hospital; and

(i) before the application under section 41(2)(a) was made, the health board gave an explanation under section 31(3) or (5); or

(ii) where no such explanation was given, it was not reasonably practicable to do so.

(3) An order under subsection (1) has effect—

(a) from the time at which it is made;

(b) for such period, not exceeding 3 weeks beginning with the day on which the order is made, as the sheriff considers appropriate.

(4) An order under subsection (1) must—

(a) specify—

(i) the person to whom it applies;

(ii) the hospital to which the person is to be taken (and in which the person is to be detained);

(iii) the period for which the person is to be detained in hospital; and

(iv) the steps mentioned in section 46(2) (if any) which may be taken in relation to the person; and

(b) be notified to—

(i) the person to whom it applies;

(ii) any person to whom an explanation was given under section 31(5); and

(iii) any other person the sheriff considers appropriate.

(5) A person authorised under subsection (1)(a) to remove to hospital a person to whom an order under subsection (1) applies may enter any premises in which that person is present in order to execute the order.

(6) The power of entry in subsection (5)—

(a) may be exercised at any time; and

(b) includes power to use reasonable force.

Order for detention in hospital

43

(1) The sheriff may, if satisfied as to the matters mentioned in subsection (2), make an order authorising—

(a) the detention of a person in hospital; and

(b) the taking in relation to the person of such of the steps mentioned in section 46(2) (if any) as the sheriff considers appropriate.

(2) The matters referred to in subsection (1) are—

(a) that the person—

(i) has an infectious disease; or

(ii) is contaminated;

(b) that as a result—

(i) there is a significant risk to public health; and

(ii) it is necessary, to avoid or minimise that risk, for the person to be detained in hospital; and

(i) before the application under section 41(2)(b) was made, the health board gave an explanation under section 31(3) or (5); or

(ii) where no such explanation was given, it was not reasonably practicable to do so.

(3) An order under subsection (1) has effect—

(a) from the time at which it is made;

(b) for such period, not exceeding 3 weeks beginning with the day on which the order is made, as the sheriff considers appropriate.

(4) An order under subsection (1) must—

(a) specify—

(i) the person to whom the order applies;

(ii) the hospital in which the person is to be detained;

(iii) the period for which the person is to be detained in hospital; and

(iv) the steps mentioned in section 46(2) (if any) which may be taken in relation to the person; and

(b) be notified to—

(i) the person to whom it applies;

(ii) any person to whom an explanation was given under section 31(5); and

(iii) any other person the sheriff considers appropriate.

Application where long term detention in hospital necessary

44

(1) This section applies where—

(a) a person is detained in hospital by virtue of a short term detention order; and

(b) the health board which applied for the short term detention order is satisfied that—

(i) the conditions mentioned in subsection (2)(a) and (b) continue to apply;

(ii) it continues to be necessary, to avoid or minimise a significant risk to public health, for the person to be detained in hospital; and

(iii) it is necessary, to avoid or minimise that risk, for the person to be so detained for a period exceeding the maximum period for which a person could be detained by virtue of the short term detention order were that order to be extended under section 49(5)(a) (the “short term maximum period”).

(2) The conditions referred to in subsection (1)(b)(i) are—

(a) that the person to whom the order applies—

(i) has an infectious disease; or

(ii) is contaminated; and

(b) that as a result there is a significant risk to public health.

(3) The board may apply to any sheriff for the board's area for an order under section 45(1) (an “exceptional detention order”).

(4) An application under subsection (3) must—

(a) specify—

(i) the person in relation to whom the order is sought;

(ii) why the board considers it necessary for the person to continue to be detained in hospital;

(iii) why the board considers it necessary for the person to be so detained for a period exceeding the short term maximum period;

(iv) the hospital in which it is proposed to detain the person;

(v) the period for which it is proposed to detain the person;

(vi) the steps (if any) mentioned in section 46(2) which the board considers it necessary to take in relation to the person;

(vii) whether an explanation has been given under section 31(3) or (5);

(viii) where such an explanation has been given, any response made by or representations made on behalf of the person in relation to whom the order is sought;

(ix) where no such explanation has been given, the reason why; and

(b) include a certificate—

(i) stating that a health board competent person from another health board's area is satisfied as to the matters mentioned in subsection (1); and

(ii) signed by that person.

Exceptional detention order

45

(1) The sheriff may, if satisfied as to the matters mentioned in subsection (2), make an exceptional detention order authorising—

(a) the continued detention of a person in hospital; and

(b) the taking in relation to the person of such of the steps mentioned in section 46(2) (if any) as the sheriff considers appropriate.

(2) The matters referred to in subsection (1) are—

(a) that the conditions mentioned in section 44(2)(a) and (b) continue to apply;

(b) that it continues to be necessary, to avoid or minimise a significant risk to public health, for the person to be detained in hospital;

(d) that—

(i) before the application under section 44(3) was made, the health board gave an explanation under section 31(3) or (5); or

(ii) where no such explanation was given, it was not reasonably practicable to do so.

(3) An exceptional detention order has effect—

(a) from the time at which it is made;

(b) for such period, not exceeding 12 months beginning with the day on which the order is made, as the sheriff considers appropriate.

(4) An order under subsection (1) must—

(a) specify—

(i) the person to whom the order applies;

(ii) the hospital in which the person is to be detained;

(iii) the period for which the person is to be detained in hospital; and

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